Fifth Circuit Blog

Friday, July 27, 2007

Circuit Split On Whether Deportation Renders Sentencing Appeal Moot When Alien Is Still Serving Term of Supervised Release

Let's say you're an alien convicted of illegal reentry. The district court sentences you to a term of imprisonment, to be followed by a period of supervised release. The court made an error to your detriment when it calculated your guideline range, and imposed a sentence within the incorrect range. You therefore appeal. While your appeal is pending, you complete your term of imprisonment and are deported. Is your appeal now moot, even though you are serving a non-reporting term of supervised release?

"Yes," said the Fifth Circuit in United States v. Rosenbaum-Alanis. The court acknowledged that, if the sentence were to be vacated, the district court could impose a different term of supervised release on remand. But it held that because Fed. R. Crim. P. 43 requires the defendant's presence at resentencing, and because Rosenbaum's deportation rendered him "legally unable, without permission of the Attorney General, to reenter the United States to be present for a resentencing proceeding as required by Rule 43, there is no relief we are able to grant him and his appeal is moot." The court held out the possibility that a live controversy might remain if a deported defendant waives his Rule 43 right to be present at resentencing, but the court declined to resolve that question because Rosenbaum hadn't submitted such a waiver.

It looks like we now have a circuit split on the mootness issue. Earlier this week, in United States v. Figueroa-Ocampo, the Ninth Circuit held that an illegal reentry defendant's appeal was not moot, even though he had completed his term of imprisonment and was serving his term of supervised release at the time the court decided his appeal. (The opinion doesn't specifically say that Figueroa was deported after he completed his imprisonment term, although it's a fair inference that he was, given that he served a federal sentence for illegal reentry.) The court recognized that the guideline calculation error affected not only the guideline imprisonment term, but also the recommended guideline supervised release term. Because "Figueroa-Ocampo’s three-year term of supervised release was calculated based on the wrong statutory provision[,]" and "[b]ecause it is possible that the district court would have imposed a shorter term of supervised release had it calculated Figueroa-Ocampo’s sentence under the correct guideline," the court held "that Figueroa-Ocampo’s sentencing appeal is not moot."

Granted, the conflict between Rosenbaum-Alanis and Figueroa-Ocampo isn't as clear cut as it could be, since Figueroa-Ocampo doesn't mention the Rule 43 angle and Rosenbaum-Alanis seems have left the Rule 43 waiver question open for the time being. Nevertheless, it's definitely fodder for a cert petition.

And don't forget that the Supreme Court has shown interest this issue. It was briefed and argued in Toledo-Flores v. United States, the companion case to Lopez v. Gonzalez. The Court granted cert in both cases to resolve the issue of whether a state felony conviction for simple possession of a controlled substance is an aggravated felony under the INA. The Court answered that question "no" in Lopez, but dismissed the writ of certiorari in Toledo-Flores as improvidently granted, without explanation. The most likely reason for the DIG is that the Court could still resolve the simple-possession-as-aggravated-felony issue for both criminal and immigration purposes in Lopez, and, consistent with Chief Justice Roberts' professed desire for a minimalist approach to decisionmaking, avoid reaching a significant constitutional question involving the Article III case or controversy requirement.

It looks like the Court will need to resolve that question after all. As discussed here, this is an important issue. It affects a potentially large number of cases, and the Fifth Circuit's approach has the potential to stifle development of case law on important guideline application issues affecting an even larger number of cases, contrary to the aims of the Sentencing Reform Act. Maybe the Court will bite if this is the central issue presented from the get-go.

Whether Specific Unanimity Instruction Is Required When Single 922(g) Count Alleges Multiple Firearms Must Be Determined On Case-By-Case Basis

Villegas was charged with being a felon in possession of a firearm, in a count that alleged nine different firearms. At trial, he requested that the court instruct the jury that it must make a unanimous finding as to at least one of the nine firearms. The court denied the instruction, and Villegas was convicted.

Villegas pressed that issue on appeal. The court observed that "[a]lthough the right to a jury trial carries with it a right to a unanimous verdict, absolute factual concurrence is not mandatory and, indeed, would be unworkable[,]" and that "[t]he duty of the court is to determine which facts are necessary to constitute the crime and to require consensus on those facts." Thus, the question of whether unanimity is required as to the factual basis for a conviction is a question that must be answered on a case-by-case basis after consideration of several factors from Richardson v. United States, and United States v. Correa-Ventura. Those factors include:

"statutory language and construction, legislative intent, historical treatment of the crime by the courts, duplicity concerns with respect to defining the offense, and the likelihood of juror confusion in light of the specific facts of the case"

"the risk that allowing the jury to avoid addressing specific factual details will cover up disagreement among the jurors about the defendant’s conduct, or that the jury might convict based on evidence that generally paints the defendant in a bad light rather than focusing on the facts of the case"

"whether defining a crime that allows a jury to convict while disagreeing about means 'risks serious unfairness and lacks support in history or tradition'"

The court held that in this case, the Richardson-Correa-Ventura factors did not require a specific unanimity instruction. First, the text of the statute and its legislative history place the emphasis on the type of person who is prohibited from possessing a firearm, not on the firearm itself. Second, "simultaneous possession of multiple firearms has been treated uniformly as a single offense regardless of the number of weapons involved[,]" thus assauging duplicity concerns. Finally, given the facts of the case, there was little likelihood that the jurors would be confused, that they would disagree about Villegas's possession of a firearm (mitigating any disagreement about a particular firearm), or that they "would ignore underlying factual details and convict on an improper basis."

Although a specific unanimity instruction wasn't required here, the court made a point of saying that "[w]e do not mean to suggest, however, that such an instruction is never required in a § 922(g) case, and we decline to speculate as to which factual scenarios might require such an instruction." Note that the opinion doesn't flesh out the facts of this case in great detail, so there should be ample room to argue for such an instruction in other cases.

1991 Version of CA Rape Statute (Penal Code § 261) Is Not a §2L1.2 Crime of Violence; Panel Member Encourages En Banc Review of This Line of Cases

At issue here is whether the version of California's rape statute in effect in 1991 qualifies as a "crime of violence" for purposes of the 16-level enhancement found in U.S.S.G. §2L1.2(b)(1)(A)(ii). All three judges on the panel agree that it's not, but Judge Jolly writes separately to encourage the court to reconsider this line of cases en banc.

California Penal Code § 261 defines "rape" as sexual intercourse accomplished, among other ways, by means of "duress." At the time, "duress" was defined as "a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." Although there wasn't much state case law on the issue, the terms "hardship" and "retribution" were broad enough to include things like "threatening to reveal embarrassing secrets about [the] victim" or "an employer threaten[ing] to fire a subordinate unless she complied with his demands[.]" Those don't require the use, attempted use, or threatened use of violence physical force, so the offense doesn't qualify under the force prong of the 16-level COV definition. For the same reason, the offense didn't qualify as the enumerated COV "forcible sex offense."

The court noted that it's holding is somewhat in tension with the court's recent panel decision in United States v. Beliew, which held that a Louisiana statute defined a "forcible sex offense" because it encompassed "constructive force." But it also noted that Beliew itself may be at odds with the earlier Fifth Circuit precedent on this issue (Houston, Sarmiento-Funes, etc.). So the panel acknowledgeds that to the extent a conflict exists, the earlier cases control.

Judge Jolly concurs, agreeing that the 1991 version of § 261 isn't a COV in light of Fifth Circuit precedent on force and sex offenses. But he expresses hope that the court will reconsider this line of cases en banc. In his view, common sense dictates that legally non-consensual sex is forcible sex, and existing precedent on this issue "leads to nonsensical results." He also argues that Sarmiento-Funes essentially makes the forcible-sex-offense inquiry indistinguishable from the force-element inquiry under the 16-level COV definition, an approach which he contends runs counter to the canon of statutory construction that would require the term "forcible sex offense" to have some independent meaning. He would follow the Third Circuit's approach in United States v. Remoi, which rejected Sarmiento-Funes and defined a "forcible sex offense" as "a sexual act that is committed against the victim's will or consent."

One final note: the court suggests in footnote 2 that the result might be different for a more recent version of § 261, because the term "hardship" only appeared in the definition of "duress" from 1990 to 1993. However, the current version of the statute still includes "retribtuion" in its "duress" definition, so despite what the court implies, it looks like the holding here would apply to more recent versions of the statute, as well.

PWID Conviction Reversed in Hidden Drugs Case; DEA Agent Opined That He'd Never Seen Courier With That Much Coke Who Didn't Know He Possessed It

Ibarra was arrested after authorities found over 250 kilos of cocaine hidden among the load in the tractor-trailer he was driving. His defense at trial on the ensuing PWID charge was lack of knowledge. Among other evidence at trial, the Government elicited testimony from a DEA agent "that in his experience he had never seen a courier entrusted with an amount of cocaine of that size (worth approximately $4 million) without the courier knowing that he was carrying something illegal." Ibarra was convicted, and he appealed.

The Government conceded that the agent's testimony was improper. FRE 704(b) prohibits an expert witness from opining as to whether a defendant had the requisite mental state for the charged crime. And there's Fifth Circuit case law directly on point holding even though a jury can draw an inference of knowledge from a large quantity of drugs, an agent cannot express the opinion that the agent in this case did. So the Government's argument was that the error in admitting the testimony was harmless. The court of appeals disagreed, and reversed Ibarra's conviction:

In this case, the Government did not have any direct evidence linking Ibarra to the cocaine discovered in the trailer. The drugs were concealed, and therefore it was essential for the Government to prove that Ibarra knowingly transported the drugs. See United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990) (holding that when drugs are hidden, additional evidence indicating guilty knowledge is required). Agent Friday’s testimony that in his opinion and experience a courier would have knowledge of the drugs was improper testimony that went directly to the ultimate issue to be determined by the jury. In addition, Agent Friday was the last witness heard by the jury, and the testimony was referenced again in closing statements. While it may have been possible for the jury to convict Ibarra beyond a reasonable doubt if the improper testimony had not been admitted, we feel that there is a “reasonable possibility” that Agent Friday’s testimony “contributed to the conviction.” Williams, 957 F.2d at 1242. Therefore we are not convinced that this error was harmless. The conviction is VACATED and the case REMANDED for new trial.

You have to wonder what the Government was thinking when it elicited this testimony. The inadmissibility of such opinions is about as black-letter as it gets.

Various Suppression Arguments Rejected

Based on wiretaps and surveillance, the FBI believed that a black Dodge Durango was running cocaine from Dallas to Memphis. Word of this suspicion was relayed to Sergeant Harry Washington, an officer with the Ark-La-Tex drug task force. Washington was also told that the Durango didn't have a front license plate (a violation of Texas law). Washington stopped the Durango; Khanalizadeh was at the helm. The typical fact pattern ensued: Washington ran checks on the vehicle registration and Khanalizadeh's license, and Khanalizadeh gave what Washington believed to be conflicting information about his travel plans and the ownership of the Durango. After the checks came back, Washington told Khanalizadeh "that it is part of his job to 'make sure nobody's trafficking in any illegal narcotics[,]'" and apparently asked several times for consent to search the vehicle for drugs and weapons. Khanalizadeh consented to the search. Washington saw some things that made him believe there was a secret compartment in the Durango, and had it taken to a nearby auto shop. There turned out to be 15 pounds of cocaine hidden in a compartment behind the back seat.

Khanalizadeh pled guilty to drug conspiracy charges (conditionally), and appealed the district court's denial of his motion to suppress the cocaine. The court of appeals affirmed, rejecting all three of Khanalizadeh's arguments.

First, the court held that the missing front license plate justified the stop, regardless of the true motivation for the stop (see Whren).

Second, and what makes this case worth mentioning, the court held that Washington did not exceed the permissible scope of the stop by asking for consent to search for drugs and weapons after the license and registration checks came back. The "discrepancies in Khanalizadeh's story," along with the FBI drug alert (on which Washington could rely based on the collective knowledge doctrine, even though he had no personal knowledge of the facts), created reasonable suspicion to look for evidence of drug activity. What about Jones, Dortch, Valadez, and Santiago, you say? "The FBI drug alert distinguishes this case from cases in which the detaining officers did not possess reliable information that the detainees were presently engaged in drug trafficking."

Third, the court held that the district court did not err by failing to address several issues pertaining to consent. There was abundant evidence that Khanalizadeh's consent was voluntary, there was no need to determine whether the consent was an independent act of free will because there was no Fourth Amendment violation in the first place, and it was unnecessary for the district court to consider whether Khanalizadeh revoked his consent before Washington took the Durango to the auto shop because there was probable cause to search the vehicle by that point in time.

Wednesday, July 18, 2007

Now Available: Revised Supreme Court Rules Effective October 1, 2007

The Supreme Court has adopted revisions to its rules, which will take effect on October 1, 2007 (subject to certain exceptions). The revised rules are available here, and a detailed summary of the revisions is available on SCOTUSblog. Highlights:

increase in the fee for admission to the Supreme Court Bar from $100 to $200

word limits in lieu of page limits (except that page limits still apply to IFP cert petitions, briefs in opposition, and other documents listed in Rule 33.2(b))

deadlines for response and reply briefs reduced from 35 to 30 days

changes to deadlines for amicus filings, and additional notice and disclosure requirements for amici

electronic versions of merits briefs now required, in addition to paper filings

As hundreds, if not thousands, of defendants have done before him, Pineda challenged his sentence for illegal reentry, arguing that 8 U.S.C. § 1326(b)'s treatment of a prior conviction as a sentencing factor, rather than an element of an aggravated offense, is unconstitutional in light of Appendi v. New Jersey. He acknolwedged that his argument is foreclosed by Almendarez-Torres v. United States, but raised the issue to preserve it for possible review in the Supreme Court, given the fact that a majority of the current members of the Court think Almendarez-Torres was wrongly decided. Typically the Fifth Circuit will simply affirm these sentences on the authority of Almendarez-Torres, pointing out that it's up to the Supreme Court to overrule its own precedent.

This one's a little different. Make that a LOT different. The court doesn't simply affirm Pineda's sentence; the panel majority "take[s the] opportunity to state that this issue no longer serves as a legitimate basis for appeal." (emphasis added). Although not actually using the word "frivolous," the majority likens it to arguments against the constitutionality of the federal income tax, and sternly warns that defense counsel who continue to raise this issue on behalf of their clients risk "damag[ing] their credibility with this court . . . ."

According to the panel majority, "a majority of the Supreme Court has reaffirmed Almendarez-Torres" in its recent decision in James v. United States, which involved various challenges to an Armed Career Criminal Act enhancement. The opinion quotes a portion of footnote 8 from James, in which the Court, citing Almendarez-Torres, said that "we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes." It then concludes that "[b]ecause the Supreme Court treats Almendarez-Torres as binding precedent, Pineda's argument is fully foreclosed from further debate." (emphasis added). The opinion goes on to say that it's not an issue that defense counsel really want to win anyway:

[F]ew issues have less merit for a defendant than the potential overruling of Almendarez-Torres — and defense counsel are well aware of this. If Almendarez-Torres were overruled based on Apprendi, prior felony crimes that could serve as the basis for sentence enhancements would have to be proven to a jury beyond a reasonable doubt. No defendant wants such an issue before the jury! The carefully drafted restrictions on evidentiary admission of prior offenses (FED. R. EVID. 404(b)) emphasize the inherent prejudice in placing a defendant’s criminal record before a jury.

The opinion concludes with its warning to defense counsel:

One might ask, then, why so many defendants in this circuit have pursued reconsideration of Almendarez-Torres. Probably because, like the mountain, it’s there, and it doesn’t fit with the logic of Apprendi. Defense counsel may also perceive some marginal tactical benefit in placing any roadblock in the way of expeditious conviction or punishment. No matter what the underlying rationale may have been for challenging Almendarez-Torres “to preserve the issue for further review,” it is time to admit that the Supreme Court has spoken. In the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax. It would be prudent for appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.

Judge Dennis writes a lengthy opinion concurring in the judgment, on the authority of Almendarez-Torres, but vehemently disagreeing with the rest of the majority opinion, attacking it on three main fronts. First, he characaterizes the majority's statement that Apprendi "no longer serves as a legitimate basis for appeal" as dictum, since the outcome is controlled by Almendarez-Torres.

Second, he charges that the majority is acting ultra vires, as there is no constitutional or statutory provision that allows "a federal Court of Appeals to issue an advisory in advance of filings that it will, in the future, view with disfavor a certain kind of appeal or argument by a defendant in a federal criminal case."

Third, Judge Dennis explains that the issue of whether Almendarez-Torres should be overruled in light of Apprendi is not frivolous at all. The question is not, as the majority seems to see it, whether the Supreme Court is likely to ever overrule Almendarez-Torres; instead, frivolousness depends "on whether the appellant's argument has a rational basis in law and fact." By that standard, the issue is not frivolous. After recounting the various positions taken by individual justices in Apprendi, Shepard, and Rangel-Reyes, Judge Dennis points out that "no justice has ever argued that [Almendarez-Torres and Apprendi] are based on intrinsically compatible rationales or that they can be reconciled logically in any principled way."

Consequently, it is not unreasonable or irrational to contend that since only the Supreme Court can resolve the Almendarez-Torres/Apprendi conflict in principle, there will continue to be a rational basis for arguing for or against the viability of Almendarez-Torres until that conflict has been squarely addressed and resolved by overruling Almendarez-Torres, declaring it stare decisis, or overruling Apprendi. Each view was rationally argued by the Justices in Apprendi and can still be so argued by litigants in criminal cases. We need go back only a month or so in the Supreme Court’s recently ended term to see that even long standing precedents can yield to rational but unlikely-to-succeed arguments, and that the incidence of these waxes with each change in the court’s composition, which in our world of mortals can occur at any time.

What's more, according to Judge Dennis, footnote 8 in the Supreme Court's decision in James was dictum, and not part of the holding as the panel majority believes, because the ongoing vitality of Almendarez-Torres wasn't even at issue in the case. Unlike the illegal reentry statute, the ACCA makes the prior conviction an element of the offense, and James admitted his prior conviction as part of his guilty plea. For that reason, the "five Justices[] who made up the Apprendi majority, [and who] are the only ones who care strongly about whether Almendarez-Torres continues as an exception in Apprendi[,]" had no reason to take issue with the dictum in footnote 8.

So how are defense counsel supposed to navigate the treacherous straits of Pineda-Orellana? Sadly, history isn't a very helpful guide in this instance. About the only thing you can say for sure is that this opinion is not likely to be the last word on the subject. En banc or panel rehearing seems likely, and I wouldn't rule out a writ of certiorari if this decision stands. (Who knows, this could be the vehicle that finally gets the Supreme Court to resolve this issue once and for all.)

Ikechukwu worked for Telesis Courier Service. "Part of his job was to pick-up a pouch of misaddressed or misdirected mail pieces from a PNC Bank lockbox operation and take those mail pieces to the post office." Complaints about stolen and counterfeited checks prompted an investigation into the lockbox operation. Ikechukwu was arrested in a sting operation, and admitted to stealing mail from the pouches. He was ultimately convicted of possession of stolen mail, in violation of 18 U.S.C. § 1708.

At sentencing, the district court applied a 2-level abuse-of-trust enhancement under U.S.S.G. §3B1.3.

The district court did not apply the enhancement based on Application Note 1, which defines “a position of public or private trust” as a position “characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” Id. at comment. (n.1). Rather the district court applied the enhancement based on Application Note 2(A), which states, “Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply to . . . [a]n employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail.” Id. at comment. (n.2(A)).

Ikechukwu appealed his sentence, arguing that Application Note 2(A) applies only to actual postal employees, not to employees of private courier services. The district court had rejected that argument, reasoning that the purpose of the postal employee exception to the general abuse-of-trust provisions is to deter mail theft. But the court of appeals agreed with Ikechukwu. It held that the plain terms of Application Note 2(A) apply only to postal employees. "Had the Sentencing Commission intended this Application Note to reach all individuals who professionally handle United States mail, such as couriers or mail room employees, it could have said so." The court also noted that

the purpose of Application Note 2(A) is to clarify that all employees of the United States Postal Service are, by the nature of their employment status, in a per se position of trust as related to the theft or destruction of undelivered United States mail. A courier, such as the defendant, is not, by the nature of his employment status, in a per se position of trust as related to the theft or destruction of undelivered United States mail.

That's not to say that the abuse-of-trust enhancement can never apply to an employee of a private courier service. It just means that the regular abuse-of-trust analysis applies to someone like that, without the per se rule that applies to postal employees.

One final point: the court observed that the district court might have thought Ikechukwu was a contract employee of the postal service. But since there was no evidence in the record to support that, and because the Government didn't argue that in the district court or on appeal, the court didn't decide whether contract postal employees would be subject to Application Note 2(A).

Monday, July 09, 2007

SCOTUSblog Statistical Analysis of OT06 Criminal Cases

SCOTUSblog has this statistical breakdown of the Supreme Court's voting patterns in criminal cases this past term. In sum, the Court "dedicated nearly a third of its docket to criminal cases (including habeas) during the recently completed term, ruling against defendants almost twice as often as in their favor." If you want to find out which justices voted which way, with whom, and how often, head on over to SCOTUSblog.

Friday, July 06, 2007

LA "Molestation of a Juvenile" Is a "Forcible Sex Offense," and Reasonableness Review Sans Rita

The court addresses two questions in this felon-in-possession case: 1) whether "molestation of a child" under La. Rev. Stat. § 14:81.2(A) is a "crime of violence" as defined in U.S.S.G. §4B1.2(a), and 2) whether the "district court unreasonably denied downward departure at sentencing, believing itself legally bound to ignore his mitigating evidence." The answers: 1) yes, and 2) no.

We'll start with the COV question. The Louisiana statute prohibits a broad range of conduct, the broadest being "the commission . . . of any lewd or lascivious act . . . in the presence of any child [under 17], where there is an age difference of greater than two years between the two persons, . . . by the use of influence by virtue of a position of control or supervision over the juvenile." The court held that this offense is a "forcible sex offense," which is an enumerated COV under §4B1.2(a). It conceded that "an adult's 'use of influence' over a juvenile isn't obviously forcible compulsion[,]" but nevertheless held that the influence "can be deemed constructive force as the interstitial federal common law of 4B1.2." It agreed with the Fourth Circuit's reasoning in a case involving a similar North Carolina statute that "[w]hen a child is the victim of adult conduct, force can be inferred." (By the by, this opinion should be equally applicable to the enumerated "forcible sex offense" found in guideline §2L1.2's 16-level COV definition.)

You may be wondering how this squares with United States v. Sarmiento-Funes. Here's what the court had to say:

Expansion of the term “forcible sex offense” through the fiction of “constructive force” is bounded by Sarmiento-Funes, where this court held that a rape statute which encompasses assented-to-but-not-consented-to conduct was not a forcible sex offense. The statute in Sarmiento-Funes voided the victim’s consent to sex in cases of deception and where the victim’s judgment was impaired by intoxication. Under such a statute, there is at least assent, and so we held that there is no force extrinsic to penetration, constructive or otherwise. But here the Louisiana statute requires that an adult abuse his supervisional authority over a juvenile, a form of psychological intimidation that carries an implicit threat of force, a species of force extrinsic to penetration, distinguishable from Sarmiento-Funes.

Contrary to what the court says, I'm not sure the decision here is consistent with Sarmiento-Funes since the same constructive force argument could have been made with respsect to the Missouri statute at issue in that case. This opinion also pushes the boundaries of the Taylor/Shepard approach, raising the same kind of Sixth Amendment concerns that shaped the decisions in those cases.

But enough about that. Let's move on to Beliew's reasonableness challenge to his sentence (or what looks like a reasonableness challenge; the court's discussion of this issue isn't very clear). Beliew argued "that he was using the gun for hunting, an activity that might have earned him a reduction had he not also been twice convicted of child molestation, and he argues that this fact should have reasonably earned him a reduction under the section 3553(a) factors." At the sentencing hearing the district court told Beliew it was "listening to [his] argument and . . . taking it into account," even though the court had a "standing rule" against parties making such arguments without submitting a sentencing memorandum in advance of the hearing. The court went on to say,

I have to tell you, Mr. Beliew, I really feel sorry for you, but I don’t think I have a legal ground here to deviate from the guideline range that puts you in a position any different from somebody who is a felon in possession with a criminal history like you, to give you a sentence that is other than in the guideline range. I really feel sorry for you, I have to tell you.

And here's how the court of appeals resolved the reasonableness challenge:

Beliew argues that second paragraph suggests that the district court was not aware that section 3553(a) did provide a legal ground for downward variance. We cannot agree. The first paragraph makes clear that the district court was well aware that the guidelines had become advisory. To make sense of the matter, the court’s reference to no “legal ground” for departure must have been to the court’s requirement that counsel abide her “standing rule” of giving notice of such arguments. The judgment of the district court is AFFIRMED.

The district court's statement about no "legal ground" is ambiguous, to be sure, but it doesn't sound like the court was referring to its policy on written sentencing memoranda, especially since the district court told Beliew it was "taking [his argument] into account[.]" If anything, it sounds like the district court thought it needed some legal reason beyond 3553(a) itself in order to sentence outside the guidelines, a view that is plainly wrong, especially in light of Rita's holding that no presumption of reasonableness applies in the district court.

Which brings up one last odd point: this opinion doesn't even mention Rita, much less discuss how, if at all, Rita modified existing Fifth Circuit precedent on reasonableness review. For that reason it's hard to draw any broad conclusions about the post-Rita world of reasonableness review from this case. Except for the obvious one: if you're before a judge that prefers the parties to submit some form of written notice or argument in advance of the sentencing hearing, it would behoove you to do so.

Indictment Challenges Rejected, But Sentence Reversed Because Bank Robbery (18 U.S.C. § 2113(a)) is Not a COV for Career Offender Purposes

Dentler was convicted of violating 18 U.S.C. § 2113(a), the federal bank robbery statute. Application of a career offender enhancement raised his advisory guideline range substantially, and he was sentenced to the statutory maximum of 20 years' imprisonment. Dentler challenged his conviction and sentence on appeal. Although the court affirmed his conviction, it held that the career offender enhancement was erroneously applied, and remanded his case for resentencing.

Dentler attacked his conviction on two grounds, both of which involved the indictment. First, he argued that his indictment failed to charge an offense. Section 2113(a) defines two separate crimes: 1) bank robbery using force and violence or intimidation, and 2) entering a bank with intent to commit larceny or a felony affecting the bank. Dentler's indictment alleged that he attempted to enter a bank with intent to commit robbery by taking money belonging to the bank. As the court observed,

[Dentler's] indictment fails to assert, on its face, a full set of elements for either crime: it is missing either the allegation that Dentler intended a taking “by force and violence or intimidation” (under the first paragraph of section 2113(a)) or that the felony he intended to commit at the time he entered the bank affected the bank (under the second paragraph of section 2113(a)).

The court assumed, for the sake of argument, that this constituted an error in the indictment, and turned to whether the error was harmless. (Note that the question of whether the omission of an element from an indictment can ever be harmless error is one that the Supreme Court has yet to decide. It granted cert on that issue in United States v. Resendiz-Ponce, but never reached the issue because it held that the indictment in question hadn't omitted an element in the first place.)

[I]n determining whether any error by the district court was harmless, we ask (1) whether the indictment provided Dentler sufficient notice of the crime with which he had been charged and (2) whether Dentler was harmed by “losing the right to have the public determine whether there existed probable cause to charge” the missing element.

The court held that the indictment provided sufficient notice that Dentler was charged under the felony-affecting-the-bank portion of § 2113(a):

The indictment plainly states that Dentler stands accused of an attempt to enter the bank to commit robbery by taking money belonging to that bank. Although the indictment could have drafted with greater skill, we cannot read it to accuse Dentler of anything but attempting to enter with the intent to commit bank robbery, despite the absence of a specific reference to “bank robbery” or the inclusion of the missing element of bank robbery, i.e., the use of force or intimidation.

It then held that there was no harm in not having the grand jury charge the missing element (the use of force or intimidation, which was the missing element of the intended felony of bank robbery), because the jury instructions required the petit jury to find that Dentler intended to use force and violence or intimidation (more on that in a second), and there was ample evidence from which "a rational grand jury could find probable cause existed to charge Dentler with the use of force and violence or intimidation."

Dentler's second argument was that the jury instructions constructively amended the indictment by requiring the jury to find that he "attempted to take the money by means of force and violence or by means of intimidation." The court held, in conclusory fashion, that this language "is properly considered a variance, rather than an amendment," because it did not allow the jury to convict him "upon a factual basis that effectively modifie[d] an essential element of the offense charged."

But all hope was not lost. As mentioned at the outset, Dentler did prevail on his challenge to his sentence. The district court concluded that the instant offense was a "crime of violence" as defined in U.S.S.G. §4B1.2(a), thereby triggering a career offender enhancement. That was error:

18 U.S.C. § 924(c) sets out a definition for crimes of violence very similar to that used by the Sentencing Guidelines. We have held that the second paragraph of § 2113(a) (under which Dentler was convicted) does not constitute a crime of violence under that definition. United States v. Jones, 993 F.2d 58, 61-62 (5th Cir. 1993).

And the error was not harmless, because even in an advisory guideline world a sentence imposed "as a result of an incorrect application of the sentencing guidelines" must be vacated. That's what happened here:

The district court’s error in classing Dentler’s offense as a crime of violence resulted in a sentencing range where the lowest possible sentence is 65 months higher than the top of the range he should have received --- such a gap affects his substantial rights.

Sumlin was tooling along in a red Corvette outside of Marlin, Texas when he passed a marked police car driven by an officer who was "looking for persons that are trafficking large amounts of illegal drugs down the highway." The rest practically writes itself: The officer pulled Sumlin over for not having a front license plate. One thing led to another and the officer arrested Sumlin for driving with a suspended license. While waiting for a tow truck to impound the car, the officer searched the Corvette and found a loaded 9mm handgun and what the officer believed to be a partially smoked marijuana cigarrette. Later, at the impound lot, a dog alerted on the 'Vette, but no drugs were ever found in the car. The government never tested the suspected marijuana.

Sumlin happened to be a felon, so he was charged with being a felon in possession of a firearm. He went to trial, where this transpired:

At trial, the government called Sergeant Kingsley, the arresting officer, who testified as to the circumstances of the stop and arrest and his drug interdiction efforts generally. Additionally, he testified that he suspected that Sumlin was transporting narcotics, because: (1) the body of Sumlin’s car had several loose or worn screws, which, according to Kingsley, indicated the possible transportation of large quantities of illegal drugs, as traffickers frequently hide drugs in the bodies of their vehicles to prevent law enforcement detection; (2) he spent some time with the car on the side of the road attempting to remove the speakers to see if anything was hidden beneath them; (3) he questioned Sumlin about the friend Sumlin had called to retrieve his car, because, according to Kingsley, drug couriers, i.e., those who transport large quantities of drugs and money, travel in pairs; (4) though he found only one cigarette, allegedly containing marijuana, he thought that he would find more drugs; (6) he followed Sumlin’s car to the impound lot and contacted the district attorney who came there to assist in drafting a search warrant for the undercarriage of the car; (7) the canine unit came to the lot and the dog alerted on the front and driver’s side of the vehicle; and (8) he questioned Sumlin about drugs when Sumlin was brought from the jail to the impound lot.

After hearing this testimony, the judge threatened to declare a mistrial. Nevertheless, for reasons not explained in the opinion, the trial continued. When Sumlin put on his case he called his mother as a witness, and she testified that it was her gun and she'd left it in the Corvette the day before Sumlin's arrest.

Things took another unusual turn after the jury found Sumlin guilty. Sumlin was facing a 15-year mandatory minimum, and an advisory guideline range of 235 to 293 months. Over the Government's objection, the district court sua sponte departed downward to 24 months.

The Government appealed the sentence. Sumlin cross-appealed, arguing, among other things, that the district court erred in admitted the arresting officer's drug-suspicion testimony.

The court of appeals agreed with Sumlin that the officer's testimony was inadmissible under FRE 404(b) and that the error was not harmless. It first rejected the Government's res gestae contention that the drug-suspicion testimony was intrinsic evidence, and therefore not governed by 404(b) in the first place. The court held that it was extrinsic evidence, and squarely within the purview of 404(b), because 1) the Government didn't prove that Sumlin actually transported drugs, and 2) this wasn't a situation where "the evidence of the charged and uncharged offenses were both part of a single criminal episode" since "[t]he testimony discussed events far beyond the time period relevant to Sumlin’s possession of the firearm."

Since 404(b) covered the testimony, the court went on to apply the Beechum two-step (relevance to issue other than character, and 403 balancing). At step one the court "first address[es] the threshold question of whether the government offered sufficient proof that the defendant committed the alleged extrinsic offense." The evidence here was "clearly insufficient to prove the other crime, wrong, or act of drug transportation."

[T]he officer’s casual testimony regarding the untested partially-smoked cigarette found in the Corvette’s ashtray might barely support a conclusion that it was his and contained marijuana, but it was clearly insufficient to prove any of the other essential elements of unlawful drug transportation, e.g., that Sumlin transported such drugs with the intent to manufacture, distribute, or dispense any controlled substance. See e.g., 18 U.S.C. § 841 et seq. Therefore, because the proof of the extrinsic act of drug transportation is insufficient, it is relevant only to the defendant’s character and should not have been admitted. Thus, we need not move on to the second step under Beechum.

Finally, the court concluded that the error in admitting the testimony was not harmless because it was a close case and drug evidence is especially prejudicial. The court therefore reversed Sumlin's conviction.

Substantial Upward Variance Vacated Because District Court Failed to Identify Case-Specific Reasons for the Variance

Walters was convicted of several counts relating to a mail-bombing, including a § 924(c)(1) use-of-destructive-device-in-crime-of-violence count that required a 30-year mandatory minimum to be served consecutively to the sentences on the other counts. The Guidelines recommended the minimum 30-year consecutive sentence on the § 924(c)(1). However, the district court, "primarily focus[ing] on the fact that his crime involved the use of a bomb[,]" imposed a non-guideline sentence of 60 years (720 months). When combined with the 262 months for the other counts, Walters' overall sentence was 982 months.

Walters appealed, challenging the reasonabless of his sentence. The court of appeals reversed, "conclud[ing] that the [district] court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence." In particular, the district court "only articulated factors that are inherent in all bomb-related crimes, and not specific facts relating to this particular defendant and his actions." Under the Smith framework, that won't fly. The court also said, somewhat confusingly, that

we do not believe that the court abused its discretion in deciding to depart. However, the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure.

The court's analysis is pretty brief, so it's hard to tease out any broader implications from the opinion. But the more-than-mere-lip-service-to-3553(a) language could be helpful to defendants challenging upward variances on appeal. It also shows that there's some limit on the magnitude of upward variances, even if it that limit may be pretty high.

Note also that one aspect of the Smith framework is at issue in a case the Supreme Court will decide next term. Smith holds, among other things, that "[t]he farther a sentence varies from the applicable Guideline sentence, the more compelling the justification based on factors in section 3553(a) must be.” In Gall v. United States, the Supreme Court will decide

[w]hether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.